Common Law Marriage - The Pitfalls of Living Together

A recent Dorset case has hit the headlines and highlighted the perils of living together without putting appropriate safeguards in place, writes Lesley Powell, Associate in Battens Solicitors’ Family Law Team.

It concerned the estate of Norman Martin, who was married but for the 18 years prior to his death lived with his partner Joy Williams in their jointly owned home in Dorchester.

Mr Martin never divorced his wife and did not update his will. The home he shared with Miss Williams was owned as tenants in common which meant that on his death his share of the property automatically passed to his wife.

Many people think that if you live with your partner for over a certain amount of time that your relationship becomes a ‘common law marriage’ and you gain rights. This is a common misconception. There is no such thing as a common law marriage and this case highlights the difficulties that couples can find themselves when a relationship is at an end.

Many people also believe that cohabiting couples have the same legal rights as married couples. Again, this is far from the truth. Currently the law does not recognise cohabitants and they have very limited protection on separation.

To protect each of the couple in the event of separation, cohabiting partners can enter into a Cohabitation Agreement at any time during their relationship.

This can set out the ownership of assets and financial arrangements during the cohabitation and in the event of a separation. Both parties should have their own legal advice when the Agreement is entered into and should be on the basis of full financial disclosure.

If the couple own a property as Tenants in Common they can put in place a Declaration of Trust which will set out exactly how much of it each of them owns.

Cohabitees should also be aware that when one of the partners dies without leaving a will the other will not automatically have a right to their deceased partner’s estate under the intestacy rules. There is also no inheritance tax exemption as there is for spouses.

It is essential that when in a cohabiting relationship both parties make wills and regularly update them.

If Mr Martin had reviewed his will with a solicitor the issue of the joint ownership of the house would have been picked up and rectified.

Even if Mr Martin had decided not to leave his share in the bungalow outright to Miss Williams, he could have given her the security of remaining in it for the rest of her life – and avoid her having to plead her case at court.

The County Court Judge decided that Miss Williams should ‘retain an absolute interest’ in the house that she owned jointly with Mr Martin.

However, it has been reported that Mrs Martin is going to appeal this decision and we await the decision of the Appeal Court in due course.